Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause

57 Pages Posted: 24 Aug 2010 Last revised: 12 Apr 2018

See all articles by Blake Hudson

Blake Hudson

University of Houston Law Center

Date Written: May 31, 2011


Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeal have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable - key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized commons resources,” as fundamentally meeting the third test for determining the validity of federal legislation under the Commerce Clause - the “substantial effects” test. Using commons analysis to meet the substantial effects test has the potential to provide a unified justification for federal environmental regulatory authority under the Commerce Clause, a clearer statement of the jurisprudential approach in environmental cases, and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also assists in answering persistent questions arising in Commerce Clause cases, including when the “aggregation” principle may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and what is the proper scope of federal Commerce Clause authority given constitutional federalism limitations..

Keywords: Tragedy of the Commons, Commerce Clause, Substantial Effects, Interstate Commerce, Federalism

Suggested Citation

Hudson, Blake, Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause (May 31, 2011). Harvard Environmental Law Review, Vol. 35, No. 2, 2011. Available at SSRN:

Blake Hudson (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States


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